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College of Mainland v. Meneke

Court of Appeals of Texas, Fourteenth District, Houston

January 23, 2014

COLLEGE OF THE MAINLAND, Appellant
v.
DOUGLAS MENEKE, Appellee

Page 866

On Appeal from the 10th District Court, Galveston County, Texas. Trial Court Cause No. 10-CV-2232.

For APPELLANT: Richard A. Morris, HOUSTON, TX.

For APPELLEE: Anthony P. Griffin, GALVESTON, TX.

Panel consists of Justices Boyce, Jamison and Busby.

OPINION

William J. Boyce, Judge.

Page 867

College of the Mainland appeals from an order denying its plea to the jurisdiction seeking dismissal of a retaliatory discharge suit filed under Chapter 554 of the Texas Government Code by former employee Douglas Meneke. We reverse the trial court's order and render judgment that this suit must be dismissed because Meneke's claim is barred by governmental immunity and the trial court therefore lacks subject matter jurisdiction.

Background

Meneke began working as the college's director of Enterprise Resource Planning in October 2007. He has a bachelor's degree in computer science; before joining the college, he spent 11 years working in information technology positions at other educational institutions.

Meneke reported to David Divine, the college's Chief Information Security Officer

Page 868

and Associate Vice President of Information Technology Services. Divine designated Meneke as the college's Information Security Officer in December 2008; in this capacity, Meneke reviewed the college's information security practices.

Meneke's review led him to conclude that Marnie Schutz, the college's Director of IT Applications for Financial Services, had inappropriate programming access to the college's computer system. He reported his conclusion to Divine and to auditors from the Texas Higher Education Coordinating Board. Meneke also reported a belief that the college's count of nursing students was inflated. Based on Meneke's information, the auditors made a preliminary finding that Schutz should not have the level of computer access that she had been allowed.

The college responded at length in writing to the auditors' preliminary finding; among other things, the college contended that Schutz's level of computer access (1) was appropriate and necessary for her job duties; and (2) had been specifically approved by the college's president and board of trustees. The auditors subsequently withdrew the preliminary finding. In a final audit report issued on April 7, 2010, the auditors concluded that the college was complying with all Coordinating Board requirements and was accurately collecting and reporting enrollment data. The audit report stated: " Internal controls are sufficient to ensure that financial aid and enrollment data are accurately collected and reported." It continued: " However, the College should formalize a Security Standards Policy for protecting information assets in accordance with TAC 202.70."

The college terminated Meneke's employment on July 12, 2010. According to the college, it fired Meneke based on what it characterizes as a long and documented history of

(1) unsatisfactory performance; (2) insubordination, including, but not limited to, failure to carry out directives and requirements of your supervisor, failure to follow policies and procedures of the College District, or repeated neglect of duties; (3) violation of the College District's code of ethics, core values, and standards of conduct; (4) violation of the College District policy, state law or federal law; and (5) good cause as recommended by the College President.

According to Meneke, the college fired him in retaliation for reporting violations of the law to the auditors.

Meneke sued the college in state court on August 9, 2010, asserting a claim for retaliatory discharge under the Texas Whistleblower Act. The college filed a plea to the jurisdiction seeking dismissal of Meneke's suit on September 7, 2010, which the trial court denied in an order signed on November 2, 2012. The college timely appealed from ...


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